The ever-cocky Episcopal Church (USA) and the Episcopal Diocese of Virginia, following its lead, declined to file responses to the petition. Four amici curiae ("friends of the court", being organizations interested in the case) filed briefs in support of The Falls Church: ACNA, the Presbyterian Lay Committee, St. James Anglican Church in Newport Beach, CA, and the Becket Fund for Religious Liberty. The case went to conference last December just on those briefs. And -- lo and behold! -- the Court ordered ECUSA and its Diocese to file a response before it ruled on the petition.

Such a request is noteworthy, because the Court's Rules explain that the Court ordinarily does not grant a pending petition without first calling for a response to it. Had the Court taken no interest in the petition, on the other hand, it could have denied the petition outright at its December 6 conference.

Monday, January 27, came and went with no word of the Supreme Court's decision. Docket watchers next noted that the briefs were distributed again for the Court's conference of February 21. This can happen if some of the Justices want more time to study the petitions, or if they are writing any opinions to be published along with the grant or denial of certiorari.

The Supreme Court came out with a long list of orders in pending cases yesterday. But Case No. 13-449 was not on it -- although it disposed of numerous cases with a later filing number. And now we find that the briefs have been carried over to a third (actually, the fourth) case conference this next Friday.

There are certainly grounds for the Supreme Court to grant review in the Virginia case. The recent reply brief sums it up well:

Respondents do not dispute that the lower courts
are deeply divided over the constitutional significance
of denominational “trust” rules. Nor do they deny the
importance of the questions presented to millions of
Americans—a point confirmed by the amicus briefs
and 30 States’ use of “neutral principles” doctrine to
decide church property disputes. Respondents do not
even try to rebut our showing that free exercise and
establishment principles preclude enforcing denominational
“trusts” not embodied in ordinary instruments
of ownership reflecting all parties’ intent. Accord
Becket Fund Br. 7-23. And they do not contest
that, if the court below applied state law retroactively,
its ruling was unconstitutional.

Instead, respondents say the decision below “does
not implicate” the lower-court “conflict” because the
decision is “factbound” and “turns entirely” on “state
law.” Opp. 10. But that position is untenable. It
evades not only the decision’s free exercise and establishment
implications, but also (1) the court’s reliance
on Jones’ “recognition” (in dictum) “that ‘the constitution
of the general church can be made to recite an
express trust in favor of the denomination[]’”; (2) its
holding that it “need look no further than the Dennis
Canon” (which was void [in Virginia] when enacted) to rule for the
denomination; and (3) its conclusion that to “address
any issues of inequity wrought [by the Dennis Canon]”
would “clearly violate the First Amendment.”
Pet. 15a, 18a, 21a (quoting Jones).
Respondents insist that the ruling below involves
no “retroactive application of a newly created rule,”
and that the Dennis Canon only made “explicit” what
had been “implicit” in the parties’ relationship. Opp.
10, 5. But they cannot explain how petitioner—or its
grantors—could “agree” to place property in trust for
respondents when “Virginia law prohibited denominational
trusts.” Opp. 7.

Hoping to avoid the appearance of retroactivity,
respondents say the court did not find “a trust at all,”
but rather fashioned a “remedy”—forfeiture—for
breach of some free-floating “fiduciary duty.” Opp.
14. But as the court explained, a “constructive trust”
is “a form[] of implied trust.” Pet. 16a. And if respondents
were correct, the court would not have
needed to hold that §57-7.1 changed the law—the
centerpiece of its decision. Pet. 14a.

Virginia Code §57-7.1 was the statute that the Virginia Supreme Court read to allow (after 1993) the creation of trusts in favor of religious denominations in Virginia. Prior to that time -- and going all the way back to the State's founding -- its courts had refused to recognize such trusts, or to give them any legal effect. Thus the question became: if denominational trusts became legal in Virginia after 1993, how did the Dennis Canon, a "trust" enacted in 1979, come to apply to the property of The Falls Church? The reply brief concludes:

Like the court below, respondents cite no evidence
that petitioner consented to a trust after §57-7.1 was
enacted. Not surprisingly, ruling for respondents required
concocting a trust “‘independently of the intention
of the parties’” (Pet. 16a)—a grave constitutional
violation. Jones, 443 U.S. at 606 (courts must “give
effect to the result indicated by the parties”).

In sum, respondents do not contend that the Court
should not resolve the lower-court split—just that it
cannot do so here. But respondents’ state-law premise
is incorrect. And even if the court below had relied
solely on state law, the free exercise implications
of its decision and its retroactive nature would independently
enable the Court to resolve the conflict.
The only conceivable basis for imposing a retroactive
trust on church property over its owner’s objection is
that the First Amendment requires that result regardless
of state law—the precise question that splits
thirteen state high courts. However that question is
resolved, guidance is needed, and this case presents
an excellent opportunity for the Court to answer it.

Indeed. Watch for the Court's release of its "Order List" next Monday -- and pray in the meantime that the Court be guided to grant review at its conference this Friday.

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